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Despatches from The Right Honourable Earl Grey.

(No. 648.)

No. 1.

COPY of a DESPATCH from EARL GREY to Governor Sir H. G. SMITH, Bart.
SIR,
Downing Street, June 30, 1851.
In my Despatch of the 13th ultimo,* transmitting to you Her Majesty's
Additional Instructions of the same date, I have stated (par. 13.) that "the
"Letters Patent of 1850 expressly intrusted the task of framing the constitu-
"tional Ordinances to the then "present Council;" and have added that "a
"Council reduced as is provided by the new instructions would probably not
"in strict legal signification, certainly not in reasonable intendment, satisfy those
"words of the Letters Patent."

These words were written after the law advisers of Her Majesty had signified
their opinion that the further instructions were legal; but, under a mistaken
impression on my part of the grounds of that opinion, which had just been
communicated to me in time to write to you by the mail then going, I now
perceive that they are calculated to convey an erroneous notion. The Council
as constituted after the reduction will still satisfy the words
"the present
"Council," inasmuch as the Council subsists by force of your commission of
1847, in which the Queen's power to modify it by fresh instructions is expressly
preserved.

It is therefore "the present Council," and it is competent, in the words of the Letters Patent of 1850, for you to make laws for the government of the settlement, with its advice, until the first writs shall issue for the election of members of the new Legislature.

But the intention of Her Majesty's Government, that (without reference to the legal question) the constitutional Ordinances should only be framed by a Council constituted according to the instructions of 1847, is correctly expressed in that Despatch.

Sir H. G. Smith, Bart.

I am, &c. (Signed)

GREY.

CAPE OF GOOD
HOPE -

No. 1.

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COPY of a DESPATCH from EARL GREY to Governor Sir H. G. SMITH, Bart.
Downing Street, June 30, 1851.

No. 2.

Mr. Adderley,

23d May 1851.

5th June 1851.

SIR, I ENCLOSE for your information copies of letters which have been 23d May 1851. addressed to the First Lord of the Treasury by Sir A. Stockenstrom and Sir A. S. and Mr. F., Mr. Fairbairn, and by Mr. Adderley, a member of the House of Commons Sir A. S. and Mr. F., with whom those gentlemen have been in communication, together with copies 30th May 1851. of the replies which Lord John Russell has returned to these letters. You will Lord J. Russell, observe that Sir A. Stockenstrom and Mr. Fairbairn, relying upon an opinion which Sir A. S. and Mr. F., they have obtained from certain eminent members of the legal profession, contest 7th June 1851. the legality of the royal instruction transmitted to you in my Despatch of the Lord J. Russell, 13th of May; but that Her Majesty's Government, having consulted the highest Sir A. S. and Mr. F., authorities within their reach, see no reason for doubting either the propriety 13th June 1851. or the strict conformity to law of the measures they have advised Her Majesty 27th June 1851. to take, and are therefore not prepared to recommend to the Queen that the Sir A. S. and Mr. F., instruction which has been issued should be revoked.

Sir H. G. Smith, Bart.

I
am, &c.
(Signed)

GREY.

9th June 1851.

Mr. Adderley,

27th June 1851. Lord J. Russell, 28th June 1851.

* For Earl Grey's Despatch of 13th May 1851, No. 627, vide Papers on Representative Assembly. presented to Parliament by Her Majesty's command, 19th May 1851, p. 203.

CAPE OF GOOD
HOPE.

Encl. 1 in No. 2.

Enclosure 1 in No. 2.

4, Lowndes Street, May 23, 1851. Mr. Adderley presents his compliments to Lord John Russell, and begs to enclose a Memorial which Sir Andries Stockenstrom and Mr. Fairbairn have requested him to present. Mr. Adderley has seen the papers which attest the fact that those two gentlemen are authorized to speak in behalf of all the municipalities and road boards in South Africa, except two, and of nine tenths of the proposed electoral body; and he begs Lord John Russell to permit him to add to their appeal his own most earnest prayer that he will give them such an answer that they may return to the colony with some encouragement to hope for the immediate enjoyment of the constitution which they almost unanimously desire, with which they would effectually keep up their internal and frontier defences, saving this country: from endless expenses, and their own from unbounded corruption; but without which he has too positive proof that the colony will speedily break up into hopeless factions, and be lost to this country and to its own future destinies.

MY LORD,

London, May 23, 1851.

WE, the undersigned, having been deputed by a great majority of our fellow-subjects, the inhabitants of the Cape of Good Hope, to submit to Her Majesty and to the British. Parliament the Petitions of the said inhabitants for the establishment of Representative Government in the said colony, and to use every exertion in our power towards the attainment of that great desideratum, deem it our duty respectfully and earnestly thus to appeal to your Lordship as the chief of Her Majesty's advisers in the fulfilment of the important charge which we have taken upon ourselves.

As your Lordship is fully aware of the actual position of our case, both in the Colonial Department and in the Imperial Legislature, we need not detain your Lordship with any lengthened details, but beg leave merely to refer to the following essential pints; viz., firstly, that it is known to be Her Majesty's gracious and declared desire to grant to Her subjects in the colonies such constitutions as shall be most consistent with the whes of such subjects; secondly, that we have the most undeniable proof that the Draft constitution contained in the many petitions of which we are the authorized bearers, is approve of by at least nine tenths of the population of the Cape of Good Hope; and, thirdly, that we feel convinced that any constitution materially inconsistent with the said draft would no. be acceptable to the great majority of the said population, and would consequently not be in accordance with Her Majesty's understood gracious wish, and the liberal intentions of Her Majesty's Government, as expressed at various times.

We should under any circumstances have considered ourselves bound to press upon your Lordship's notice the humble but earnest prayers of our constituents, and the necessity of a speedy and immediate termination to their present fatal state of suspense, but we dare not withhold from your Lordship that we are strongly urged to additional exertion by the conviction that there is great danger in delay.

We need not remind your Lordship of the present state of South Africa. It is painful to think of, and would be still more painful to discuss. We should prefer for the present to avoid dwelling upon the causes of the utter disorganization into which our colony, its Government, and its neighbourhood are plunged. Suffice it to assure your Lordship, firstly, that we shall at any time be prepared to produce the most complete proofs that the mass of Her Majesty's said subjects have not in the remotest degree been instrumental in producing the said disorganization, and that every charge or insinuation which attempts to trace it to agitation or groundless discontent is notoriously contrary to fact; and, secondly, that we can declare it to be our own solemn and firm conviction that every effort to restore order, peace, and tranquillity without the concession of the said just and legitimate claims of our said constituents will prove abortive, whilst we have every reason to suppose and trust that a constitution as prayed for would at once produce a favourable reaction, and heal many of the now bleeding wounds.

We have the satisfaction of knowing that we have now performed a solemn imperative duty, and can leave the responsibility of refusal or delay upon your Lordship and your colleagues; but we may conclude by adding, that whilst the colonists understand the legitimate responsibilities which must inevitably devolve upon them, together with the desired constitution, and whilst they are not unreasonable enough to expect to shrink from the cost when they enjoy the fruit of free government, we must in their name firinly protest against their being charged with any portion of the expenses connected with or caused by the present disturbances on the frontiers of the colony, as the result of measures over which they could have no possible control.

We hope, finally, that your Lordship may be pleased to favour us with the earliest convenient notice of the decision of Her Majesty's ministers on the above subject, so as to enable us to relieve the colony from a most painful state of suspense, which is every hour becoming more and more critical and dangerous.

HOPE.

We are under the necessity of transmitting a copy of this Memorial to our constituents CAPE OF GOOD by the first opportunity, and we respectfully pray that your Lordship will be so good as to enable us to accompany it with your Lordship's answer at the same time.

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IN acknowledging the receipt from Mr. Adderley of your Lordship's note to that gentleman of the 28th instant, we are desirous, before we enter on the subject to which our attention is thereby directed, of expressing to your Lordship both the feelings of gratification which the considerate and kind tone of your Lordship's communication has produced in us, and the hope which it has occasioned that the disasters by which our country is imminently threatened may yet be averted.

In order to contribute as much as possible to this end, we have anxiously considered the subject of your Lordship's note, and have resolved to simplify the question, and facilitate a happy adjustment of it, by confining ourselves to only one point of difference between the Letters Patent of May 1850 and the sixteen articles which the great body of the colonists have humbly submitted to Her Majesty as the basis of a representative constitution. If this should be conceded, the other points of difference, which are not numerous, may easily be postponed for adjustment by the Parliament of the colony, for we feel bound to state to your Lordship that all points relating to the form of the constitution set forth in the Letters Patent to which objections have been raised are insignificant compared with the more unconquerable repugnance of the people of the colony to the continuance of the present constitution, or any attempt to use it for permanent purposes. This constitution is really a despotism.

It is condemned by everybody as unworthy of regard and confidence; yet there are committed to it the highest of political powers,-that of constituent legislation. It is also empowered to settle many important questions, involving the welfare and even the existence of the colony, and to deal to any extent with the pecuniary resources of the people. But even this constitution, condemned, and virtually abolished, by the resignation from time to time of the members of the Legislative Council, has been recently rendered still more objectionable by the suspension of certain portions of the Letters Patent by which it was constituted by other Letters Patent. We allude to Lord Grey's Despatch to Sir H. Smith of the 13th instant, with its enclosed Letters Patent, which have just appeared here, at page 203 of the last Blue Book, whereby a despotism more complete and avowed than that of the constitution which it supersedes is established at the Cape, and all constituent legislation is postponed indefinitely. Intimately acquainted with the state of political opinion and feeling at the Cape, we solemnly assure your Lordship that this measure will be regarded as a revocation of the Letters Patent of 1850, and a final refusal on the part of Her Majesty's Government to accede to the earnest prayers of the people for representative government; and we cannot conceal our fears that such a conviction and natural inference must, in the present circumstances of South Africa, lead to the most deplorable consequences. But by granting at once and directly from Her Majesty the constitution prayed for, all this danger may certainly be removed, and universal harmony, good will, and affectionate loyalty revived and confirmed amongst all classes of the people.

Again assuring your Lordship of our gratitude for your courtesy and consideration,

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In answer to your letter of the 30th of May, I beg to assure you that nothing would give me more pleasure than to contribute to the permanent peace and content of the colony of the Cape of Good Hope.

I am glad to find that you are disposed to waive for the present nearly all the points of difference between the Letters Patent of 1850 and the sixteen articles agreed to by certain inhabitants in the colony.

Had this course been taken at the Cape the main articles of the constitution might have been sent over here with the concurrence of the Legislative Council, and Her Majesty's Pleasure upon the whole matter might have been declared before this time.

As things now stand, the general views of the Government may be collected from Earl Grey's Despatch of the 13th of May. But the opinion and feeling of the inhabitants of the Cape will be greatly in error if that Despatch is regarded there as a revocation of the

Encl. 2 in No. 2.

Encl. 3 in No. 2.

HOPE.

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CAPE OF GOOD Letters Patent of 1850, and a refusal on the part of Her Majesty's Government to accede to the earnest prayers of the people for representative government. On the contrary, nothing can be more fixed than the determination of Her Majesty's Government to establish representative institutions at the Cape. They arrived at this decision in contradiction to the impressions of their predecessors in office, and in the face of obstacles which, had they been so disposed, might have furnished them with sufficient grounds for postponing any resolution on the subject.

But it is obvious that while Sir H. Smith is engaged in active warfare in Kaffraria, it is impossible for him to devote his time and attention to the labour of assembling a colonial Parliament at the Cape.

In no very long time we shall learn whether the war is likely to be brought to an early termination. Upon the intelligence which we receive on this subject the future determinations of Her Majesty's Government upon the questions which you raise in your letter will depend.

Among these the most important is that of establishing the representative constitution by directions from this country, or by Ordinances to be sent from the colony, to be corrected and confirmed at home.

Sir A. Stockenstrom.
J. Fairbairn, Esq.

I have, &c. (Signed)

J. RUSSELL.

Encl. 4 in No. 2.

Encl. 5 in No. 2.

Enclosure 4 in No. 2.

MY LORD,

59, Sydney Street, Brompton, June 7, 1851. WE have the honour to acknowledge your Lordship's letter of yesterday, in answer to ours of the 20th ultimo, and we beg to express the gratification which we feel at the assurance that nothing can be more fixed than the determination of Her Majesty's Government to establish representative institutions at the Cape; but your Lordship will oblige us by saying if we rightly understood your letter to authorize us on returning to the colony to state your intention to be the immediate establishment of the representative constitution by directions from this country, superseding all intervention of the Legislative Council, and whether, if the next despatches from the seat of war give no better hopes of a speedy conclusion, you hold out the prospect of some one else being commissioned by Her Majesty to assemble a colonial Parliament at the Cape immediately, even while Sir H. Smith must remain with the army. We venture to give our own conviction that the war cannot end or be brought to a satisfactory settlement till the constitution is guaranteed by steps taken for its immediate establishment, so as to encourage and combine all classes of the inhabitants to the support of the Government, and to check the corruption incident to so large a war expenditure.

If we rightly understand your letter as above, we beg once more to assure your Lordship that such an establishment will tranquillize the whole colony, and unite all classes to the common defence, as well as in carrying out in the best manner possible Her Majesty's grant of representative institutions.

Right Hon. Lord John Russell,

We have, &c.

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GENTLEMEN,

Pembroke Lodge, June 9, 1851. I CAN add little to my letter of the 6th instant. The points you mention require the most careful consideration. The establishment of a representative constitution cannot be long delayed without producing very serious evils to the colony; but the exact time of putting it in force, the practicability of superseding all intervention of the Legislative Council, consistently with the maintenance of some of the most important laws connected with it, and, lastly, the question of separating the eastern from the western portions of the colony, are matters for serious reflection and consultation.

In the course of a few days I hope to be able to give you further information, at least as to the mode in which Her Majesty's Government propose that these important points should be brought to an issue.

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TO-MORROW the mail closes for the Cape, and we have not yet received the "further information" which your Lordship's letter of the 9th instant has led us to expect.

Our perfect reliance on your Lordship's word and sincerity satisfy us that the delay is unavoidable. In the meantime that delay compels us to transmit to our constituents certain

HOPE.

remarks on your Lordship's letter of the 6th instant, from which we abstained as long as CAPE OF GOOD there was the least hope of our being able to forward an announcement that our prayers would be acceded to. At the same time we do not think ourselves justified in transmitting the said remarks without placing copy in your Lordship's possession, as we do, enclosed.

Right Hon. Lord John Russell,

We have, &c.

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REMARKS ON Lord John Russell's Letter, June 6, 1851.

THE 1st paragraph calls for no particular remark.

On the 2d and 3d it is necessary to observe, that at the Cape no course could have been taken by the four elected members who seceded from the Council than the course which they did take, without betraying the trust which had been reposed in them by their constituents.

To establish this point it is only necessary to show that the Legislative Council was defunct, and could not be reconstructed for the ordinary purposes of legislation when the Letters Patent of the 23d May 1850, or, rather, the Secretary of State's preliminary instructions of the 31st January 1850, reached the Cape.

The Governor's sentiments on this subject are set forth in the 9th and 10th paragraphs of his Despatch to Earl Grey, dated 17th May 1850, to be found in page 1. of Blue Book of the 19th May 1851, where he says,

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"The Legislative Council having been virtually dissolved by the violence of the people, "it was at once resolved that the colony was ripe for representative institutions, and that the Legislative Council thus abolished should only be replaced by a representative assembly. "The very general existence of this feeling, and the expectation which I myself enter"tained (founded on your Lordship's Despatch, No. 276, of the 12th February 1849), that I "should shortly receive instructions relative to the introduction of representative institutions "into the colony, induced me, even after the receipt of your Lordship's despatches announcing "the final decision of Her Majesty's Government on the convict question, to abstain from any attempt to complete the Legislative Council on its former basis, because I considered "it would lead to a new contest between the Government and the people, in which the "success of the former would have been at least very doubtful."

The feeling of the colony with reference to the Legislative Council may be gathered from the petition to Her Majesty from the municipality of Cape Town, dated 26th July 1848, published in page 94 of Blue Book of the 5th February 1850, in which the following passage is to be found:

"That the experience of fourteen years since the formation of the Council called 'Legis"lative' has proved to demonstration the utter inutility and worthlessness of its constitution "and character, it being acknowledged that virtually, and for all general purposes and "matters of importance, the inhabitants of this colony are in no way represented by the so"called unofficial members of the Council."

"That, with the solitary exception of the proposed Stamp Act,' withdrawn by Govern"ment in consequence of the opposition of the whole colony, the petitions of the people, "but particularly of the municipality and inhabitants of Cape Town, against many "grievances, have not only been wholly disregarded, but received by the organ of Govern"ment with marked contumely and insult, the petitioners disparaged, their arguments "ridiculed, and their facts so distorted and misrepresented as clearly to indicate the utter hopelessness of expecting redress from such a quarter.

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"That, even if the present number of unofficial members were freely chosen by the people "to give an honest and independent vote upon all Government questions, their endeavours "would be rendered nugatory and unavailing, by being subject to be outvoted at any time "by the official gentlemen who are compelled to support all Government measures, however "opposed to their own conviction.

That, as the Legislature is at present constituted, Government has the power of passing "any arbitrary and obnoxious enactment, under the semblance of the same being with the "advice and approval of the Council; it therefore becomes a matter of serious considera"tion whether it would not be infinitely preferable that the Governor of the colony should "act solely upon his own views and responsibility, than to be under the necessity of resort"ing to so glaring a mockery of representation.

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"Under these circumstances, and entertaining an entire want of confidence in a Council "thus constituted, your petitioners pray that it may please Your Majesty to abolish the present Legislative Council, and substitute in lieu thereof such Legislature as will insure "to Your Majesty's subjects in this colony free institutions, in accordance with the spirit of "the times, upon the principle that taxation without representation is unjust and " oppressive." Nobody will deny that these sentiments were general throughout the colony.

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